Encana Corp. Demands Removal of Unflattering Recording of Company Conference Call

Adam Holland, February 27, 2013

Abstract: A Canadian reporter posted an unflattering audio clip of a big company's conference call onto a US website. The company filed a DMCA notice with the host to get it removed, asserting copyright in the recording. So far, the host, Chirbit has left the clip up, asserting that it is a fair use.

Weather Report on Encana controversy

Encana is a Canadian energy company.
Last week, they had a quarterly results conference call, on which, along with company executives like chief executive Clayton Woitas, were industry analysts and, apparently, reporters.

During the call, Canaccord Genuity analyst Phil Skolnick asked the following question:
“But in terms of new investment guidelines which were updated, do you think that prohibits a company like Encana from being acquired?”

Woitas responds: “The answer would be ‘No.’”.

Shortly thereafter, someone mumbles “F___king a__hole”.

We know all this, despite our not being on the call, because someone [ according to the Globe & Mail, one of their reporters] recorded the conversation and posted it to the web. At least as of this writing, you can still find it here, hosted by U.S. company Chirbit. The recording has been accessed upwards of 60000 times. Here’s where things get interesting.
Encana sent a letter to Chirbit founder Ivan Reyes, requesting that the recording be removed from their site, and therefore, presumably, from the Internet and public scrutiny. Chilling Effects is pleased to be able to say that we now have a copy of this notice in our database .
Encana followed this up a week later later with a similar though more “official looking” request, which we are also pleased to have.
Reyes responded to this by saying that he would contact the person who posted the recording and alert them that there had been a complaint and a request for removal, but that he felt the posting of the recording fell under fair use. He went on to call the Encana attorney’s attention to an article from the Reporter’s Committee For Freedom of the Press referencing The Swatch Group Management Services LTD v. Bloomberg L.P..
As it happens, this case was the very first that came to mind for the Berkman Center’s Digital Media Law Project when they learned of the Encana story. Mr. Reyes knows his stuff!

In Swatch v. Bloomberg, Swatch was hosting an international conference call, on which a Bloomberg reporter was listening. The reporter made a recording of the call without permission and made a transcript available to Bloomberg subscribers. Swatch sued for copyright infringement. After Bloomberg’s motion to dismiss was denied, the case went to trial, where the same judge who denied the motion to dismiss assumed that Swatch had a valid copyright in the recording of the call (which they almost certainly did, for reasons we’ll get into in a moment) and decided, (in a pretty amazing opinion) on summary judgment that Bloomberg’s was a clear fair use, and that they had therefore not infringed.
The parallels between this and the Encana situation are striking. In both cases, an announcement was made prior to the call that the call should not be recorded or rebroadcast without the express consent of the corporation". Swatch was simultaneously making their own recording, which was critical to their assertions of copyright, because it fixed the content of the call in a tangible medium.
It isn’t clear from the available facts whether Encana was making their own simultaneous recording. Canadian copyright law doesn’t have a statutory fixation requirement, but courts have introduced one, and fixation is mentioned repeatedly in the discussion of sound recordings. See, for example, Section 15 here.
It’s therefore at least arguable that Encana has no copyright in the recording at all! Even if they did, as this analyst points out, they would only have copyright to the words uttered by an Encana employee, which here are solely “F___king a__hole”.

Canadian law also has “fair dealing” instead of US law’s fair use, but there are many similarities between the two, so it seems at least probable that posting this recording would meet a fair dealing analysis. If we’re lucky, maybe Professor Michael Geist will weigh in.

Now, ~60,00 people hearing one of your executives call someone a rude name is a lot, to be sure, but it’s hard to imagine that this many would have heard the recording if Encana hadn’t brought so much attention to it with the takedown request.
[ I really ought to set a hotkey in my word processor for the Streisand Effect. ]
As the bloggers at Poephat put it “Encana, have you thought this strategy through?”. Even Encana admits that their request kept the recording in the public eye, but that they thought it was worth it.

“Encana spokesman Jay Averill acknowledges the efforts to remove the clip from Chirbit's site extended the life of the story through another news cycle but said the company decided it did not want "a clip like that to circulate around the Internet for years.
"We know very well we can't erase everything on the Internet," he said.”
Perhaps. But you’d think that a multinational company with a 13.25 billion market cap might have…other priorities? You might even think that their shareholders wouldn’t care about this, or perhaps even see the unvarnished earthy response of the unknown executive as indicative of just the sort of company they want to invest in. Who knows? But is abusing copyright law for the purposes of reputation management the right move? Is it ever? And isn’t reporters getting access to possibly interesting information and disseminating it to the public exactly what the public wants them to be doing? The judge in Swatch thought so.

For many, including us here at Chilling Effects, the real question is whether this is really a copyright claim at all. Sure, Encana might have a legal copyright in the recording, even though it seems more plausible that, given the warning at the beginning, they might have a better breach of contract claim (assuming the reporter had been invited to the call). But is the takedown request really about controlling copies? That is, is this a question of Encana wanting to be the entity who has “the right to first publish, reproduce, perform, transmit and show in in public.”? This seems doubtful. Instead, it seems a lot more like Encana wants the clip down because it is embarrassing, and that Encana is, in the words of the Examiner “trying to subvert freedom of press by using copyright law”

What this all comes down to, as the judge in Swatch pointed out, quoting another famous copyright case, “the ultimate focus is the goal of copyright itself, whether “promoting the Progress of Science and useful Arts would be better served by allowing the use than preventing it.”

Chilling Effects couldn’t agree more.

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